Misiano Law’s Top 8 Considerations When Buying or Selling a Business

James F. Misiano, P.C. has represented hundreds of entrepreneurs throughout his career in either purchasing or selling a business, so he’s learned a thing or two.

Here are his hints and questions to consider for both purchasers and sellers:

1. Is the Business What it Seems?

If you find a business you think you would like to own, make sure it is what you think it is. This may sound like simple advice, but it is routinely ignored. You must vet the business before buying it!  How? First, ask the operating owner to allow you to shadow him/her over the course of two weeks. This way you can see whether you have the physical stamina and mental acuity to handle the management of its operations.

2. Look and Listen

Observe firsthand the employees and key management people. Do they know what they are doing, or are they incompetent friends and family of the owner?  Is your style and their management style compatible?  Do the employees get along or are you buying a hornet’s nest?  What is the corporate culture?

3. How Much Money Are They Really Making?

What is the business grossing in income?  Netting?  Unless you’re a forensic accountant, you may need some help on this one.  Aside from hiring an accountant that specializes in this type of investigation, you too should look at cash receipts, bank deposits, and past bank statements. Those figures can’t lie; the owner can. Do a judgment and lien search on the company to see if there are liens against any equipment, or tax liens, judgments, and liabilities.  This may tell you if the business is in distress. You may enjoy revitalizing a depressed business, but make sure the purchase price reflects that.

4. Be Careful of Leases

If you are negotiating a new lease with the current landlord, be sure to inform the landlord that the tenant will be a corporation as you want to limit personal exposure. The landlord may want a personal guarantee, but I would advise against this. However, if you feel it is a must, either to get the space or because you think the risk is worthwhile, be sure to limit the time frame of the guarantee and get a “good guy” clause in the lease. This will essentially allow you to be released if you surrender the security, are paid up to date on the rent, and the premises are in good condition when you surrender the key.

5. Hire a Business Broker

When selling, get a good business broker that has some experience in your type of business. Put the business up at a reasonable sales price. There are standard multiples in certain businesses depending upon their yearly gross. Decide if you want to finance part of the transaction, for how long do you want to finance the note for, and at what interest rate.

6. Obtain a Guarantee

If you do finance the business purchase, try to get a personal guarantee on the promissory note. Get security, either on the business equipment and/or accounts receivables, or even secure it by a mortgage on the purchaser’s home or other property. Be sure to take back an assignment of lease if you are financing. Why?  This way, you can come back into the business and run it if the purchaser defaults, protecting the investment you sold. The landlord must allow you back if the lease is not in default and you have the assignment.

7. Vet the Purchaser

A seller must vet the purchaser. What is the purchaser’s background? Can this person run the business competently?  This is only important if you are financing the business. Otherwise, it is not an issue when the buyer is paying the purchase price in full upfront.

8. Avoid Trouble by Selling to a Reasonable Buyer

Still, no matter what is written in a contract, unreasonable buyers can make your life hell. Sell to someone who does not have obvious defects in their personalities. You will discover this when negotiating with them. Why is this important? You don’t need a lawsuit commenced by the buyer after you’ve sold the business.  Even if the lawsuit has no basis, it still costs money to defend. I would advise against representing in the contract any sales figure. Let the buyer vet the business and decide on the purchase based upon his accountant’s advice or his own instincts.

“There is much more advice that I have for these situations. If you are buying or selling, retain my 38 years of experience to ensure a smooth process.” – James Misiano

Contact James Misiano today at 631-396-0255 if you are planning to buy or sell a business.

Leandra’s Law – What You Need to Know  

What is Leandra’s Law?  Technically, it is a violation of Vehicle and Traffic Law Section 1192.2a(b) – a Class E Felony. The violation is operating a motor vehicle on a public highway while one’s ability to operate such vehicle is impaired by the influence of a drug (or alcohol) while a child of 15 years or younger is a passenger in the vehicle. In simpler terms, if you drive your car while impaired with a passenger under the age of 16, you will be charged with a felony.

These cases were originally charged as a misdemeanor – reckless endangerment to a child – but this law now supersedes the old misdemeanor statute, and you will be charged with a felony. The Suffolk County District Attorney Office’s policy is to request a sentence of 1-3 years incarceration.

Some people may think that they would never be in a position to be charged with such a crime, but they should think again. Many clients are on prescribed medication, and unbeknownst to them, they are driving legally impaired. They may drive their children to school and get stopped because of a minor traffic infraction and the police officer could suspect something more. The next thing you know they are in handcuffs on the way to the precinct.

Typical situations I have encountered are motorists taking prescribed Xanax for anxiety. Depending on the level of dosage, this can impair your ability to drive. Now, if you have a child in the car, it’s a felony.

After surgery, many motorists are driving following taking prescribed painkillers, an opioid or similar type of drug (doctors are now prescribing methadone to patients susceptible to opiate addiction). The motorist may think “I am fine. My doctor prescribed this legally.” But they don’t read labels or take into account that the drug ingested may still be in their bloodstream that afternoon when they are picking up the kids from school. You get the idea.

Many of Leandra’s Law cases are not what you might believe as typical such as a motorist having too many drinks at a bar and picking up a child on the way home (although, I’m sure this too occurs). In my practice, most of the cases seem to be an innocent unawareness of the drug ingested and the effect it may have on their ability to drive.

The bottom line is, be careful and be aware of what you are ingesting before you drive your motor vehicle. If you get caught, you know who to call.

Contact seasoned attorney James Misiano at 631-396-0255 if you encounter any of these situations or have a question about Leandra’s Law.

Elder Law – Why You Should Plan Now to Avoid Problems Later

Caring for loved ones is never an easy task.  Combine the emotional stress of an ailing parent or spouse with navigating the waters of obtaining their care, and one can not only become quickly overwhelmed but can lose precious assets they or their loved ones have worked hard to save.

While many people talk about the eventuality of needing care, they often don’t plan for it, and when it is time, they find themselves completely unprepared.  The average cost of nursing home care on Long Island is between $300 and $500 per day, and if an application for care is submitted with surplus assets, an ailing patient can face a penalty period that costs thousands of dollars and uses all of their assets.

But there are ways to preserve those assets for spouses and loved ones if properly planned for, and properly managed before and at the time of application. There are exemptions for transfers between spouses, or to disabled children, and child caregivers.  Or if properly managed ahead of time, health trusts can provide protection for almost all of one’s assets.

Eldercare professionals are well versed in this area and can help veteran families who believe they have taken all of the necessary steps, as well as, families that have failed to do any planning at all chart the waters of nursing home care, at home care, or future planning.

While it is always easy to listen to a neighbor’s story of how they made sure their loved was “taken care of,” it is important to contact a professional who can help with the entire process from start to finish.

Contact Misiano Law with any questions about protecting your loved one’s assets, and we will help you prepare for this major life event.

Misiano Law Real Estate Purchases and Sales Tips: Mortgage Pre-Approvals

Mortgage Pre-Approvals

There are many things you can do to avoid the hold-up of a potential home sale – or at least not impede its progress. One is to make sure the buyer is indeed qualified for a mortgage.

Some purchasers bring with them, when looking for a home, a pre-approval for a mortgage, but how much stock does that really hold? And should you consider this a green light to move full speed ahead?

According to real estate attorney James Misiano of Misiano Law in Hauppauge, “This means, in my humble opinion, very little.”

“A pre-approval simply states that if the unvetted information the potential purchaser/borrower gave to the lender is accurate, and if their credit checks out, then they may qualify to purchase your home.  Remember, this is all unvetted information and should be considered as such.”

To be pre-approved for a mortgage means that a bank or lender has investigated your credit history and determined that you would be a suitable candidate for a mortgage. However, pre-approvals may only be good for a limited time. They usually signify that a lender is ready and willing to lend you money, but not quite yet as they will require verification of financial status and credit-worthiness.

“The contract will still be contingent upon the purchaser obtaining a mortgage.  Therefore, I would not prefer one buyer over another just because of this pre-approval,” said Misiano.

James F .Misiano, P.C. has been representing home buyers and sellers for 38 years. He owned and managed a Title Abstract company for 12 years and is expertly familiar with title insurance issues – and with the solutions.  If you are buying or selling a home, call Misiano Law today for a free consultation.

Misiano Law Real Estate Purchases and Sales Tips: Home Appraisals

Home Appraisals

Many stumbling blocks may appear when purchasing or selling a home. Of course, this is why you should obtain legal counsel from an experienced firm such as Misiano Law to protect your best interests in these matters. Today we’ll discuss home appraisals and reflect on a recent story of a client-seller that accepted a bid on her home.

After an initial bid, the purchaser requested that the seller raise the price of the home and give the purchaser back a credit that he could use for his closing costs. “I advised the seller that the raising of the price of the home could potentially kill the sale if the lender’s appraisal does not evaluate the home at the raised price,” said James F. Misiano of Misiano Law in Hauppauge.

In a case like this, it is important to consider the seller may lose valuable time removing the home from the marketplace to accommodate a buyer that essentially does not have the funds to close on the home.

“So, here’s the solution,” said Misiano. “I told the seller to keep the home on the market and have the potential purchaser pay his bank for an appraisal. If the appraisal values the home at the increased value, then we can enter into contract. If not, a new solution must be arrived at or nix this purchaser.”

James F. Misiano, P.C. has been representing home buyers and sellers for 38 years. He owned and managed a Title Abstract company for 12 years and is expertly familiar with title insurance issues – and with the solutions.  If you are buying or selling a home, call Misiano Law today for a free consultation.

Misiano Law Real Estate Purchases and Sales Tips: Certificate of Occupancy

Certificate of Occupancy

Many issues may arise when purchasing a home. And this is why you should obtain legal counsel in these matters.

If the home you are considering has additions such as a basement apartment, pool, deck, shed, and fencing, all these can be potential deal killers because you may apply for a mortgage and lock in a rate up to a certain date.  If you can’t close within the time set in your commitment, you will lose your rate of interest or even the commitment altogether.

So, what can hold up the closing?  A Certificate of Occupancy (C of O) issued by the Town Building Department after inspection of the contracted work, which would state the pool, additions, shed, etc. was built in compliance with the town building code.

The lender’s attorney will generally not allow the loan to close without proper C of O’s for the entire premises. Therefore, when bidding on a home, don’t be afraid to ask the seller to produce the C of O or multiples for later additions.  It may help you decide to pass on the home or continue with the sales process.

Some applications can be obtained relatively quickly, depending on the town, but some can delay the sale substantially – particularly additions added without any permit process.

When selling a home, the converse is true. MAKE SURE YOU HAVE ALL YOUR C of O’s for all your additions!

James F. Misiano, P.C. has been representing home buyers and sellers for 38 years. He owned and managed a Title Abstract company for 12 years and is expertly familiar with title insurance issues – and with the solutions.  If you are buying or selling a home, call Misiano Law today for a free consultation.

Misiano Law’s Real Estate Purchases and Sales Tips: Flood Insurance

Flood Insurance

There are many issues to consider when purchasing a new home such as flood insurance for properties in flood zones.

“I was recently contacted by a client who made an offer on a home near the Long Island coastline in Point Lookout,” said experienced attorney James F. Misiano of Misiano Law in Hauppauge. “He was completely “gutting” the home and would need to apply for a permit and get a new Certificate of Occupancy (C of O) for the home. When we spoke, I asked him if he talked to the seller about an elevation survey.”

An elevation survey is important when purchasing a home or business property at or near the water because it can determine whether or not your lender will require the additional expense (which is constantly rising) of flood insurance. It may also determine the measure of your premiums of said flood insurance.

“The client said he hadn’t spoken about that, but the broker handling the sale should’ve brought that to his attention,” Misiano advised.

Adding a flood insurance premium, sometimes in the thousands of dollars per month, to your mortgage should be a decision you are well informed about BEFORE the binding contract is signed.  That elevation survey should also be brought to your insurance agent so that he can properly determine what you are facing in additional premiums.

James F. Misiano, P.C. has been representing home buyers and sellers for 38 years. He owned and managed a Title Abstract company for 12 years and is expertly experienced with title insurance issues and potential solutions.  If you are buying or selling a home, call Misiano Law today for a free consultation.


Are You a Traffic Scofflaw? Misiano Law Can Help!

Perhaps you received a parking ticket or moving violation ticket and ignored it. Or missed a court date because of something pressing and now you have defaulted on the appearance date. Congratulations – you are now a scofflaw! Your license is suspended, and you are no longer able to drive legally.

So, how do you right the mistake? Contact James Misiano of Misiano Law for a free consultation and obtain his experienced counsel.

Many different jurisdictions handle traffic violations. The Suffolk County Traffic and Parking Violation Agency in Hauppauge and the Nassau County Traffic Bureau in Hempstead are the biggest. There are also many town and village justice courts in Islandia, Patchogue, Port Jefferson, and all the various Hamptons.

Generally, you or your attorney must appear and pay a scofflaw fee to get your case back on the calendar. Usually, after 60 days (each jurisdiction is different), you can no longer go back to “square-one,” and you have only one option to lift the suspension on your license – pay the fine and penalty for lateness.  If you don’t do either of these two things, your license remains suspended with no chance of renewal or even obtaining a license in another state.

The Department of Motor Vehicles will send a notice to the address on your license informing you of the suspension. If you have moved and didn’t receive it – tough luck!  If you are caught driving with a suspended license (multiple times) you will be charged with “aggravated driving with a suspended license” – a misdemeanor. If you are charged with this crime or any misdemeanor for that matter, and you don’t appear on your court date, a warrant for your arrest will be issued by the Court.  If you are picked up by the police after that warrant is issued, you are going directly to jail – without passing GO!

If you missed a misdemeanor or felony court appearance – for good cause – that warrant can be recalled and the judge may allow your former bail status to continue, rather than revoking bail and getting locked up until trial. Obviously, it’s important to attend court appearances, but if for whatever reason you miss a date, counsel can help you get reprocessed and remove the warrant.

“That’s what I do almost every day. Call me.” – James Misiano.

Behind on Your Mortgage? In or Near Foreclosure? Misiano Law Can Help Today!

Are you a distressed homeowner? Are you behind on your mortgage payments?  Has your lender started a foreclosure lawsuit?  Or is the lender about to foreclose in the near future?  Don’t despair as help is available!

Misiano Law led by James F. Misiano P.C. is experienced in foreclosure defense, loan modification and other strategic solutions to help you to protect what is usually the largest financial investment of your life – your home.

For many years homeowners believed that when they fell behind on their monthly mortgage, and the lender began a foreclosure lawsuit, there was nothing that they could do.  They believed that it was only a matter of time until they would lose their homes. Many homeowners still believe that today, but they are wrong!

There are many steps that can be taken to keep your home and give you financial relief, both as to accumulated back payments and future payments.  Problems that seem insurmountable are not.  There are several options available to homeowners that have suffered economic, employment, medical or other hardships, which caused them to fall behind on their monthly mortgage payments.

Misiano Law can show you the various options available to save your home.  We both defend the foreclosure lawsuit (if one has started) and show you how to utilize New York State and Federal laws to pursue one or more options to avoid the potentially drastic result of losing your home.

Utilizing proper court procedures available to distressed homeowners, Misiano Law negotiates with your lender to lower your monthly payment to a more affordable amount.  As for the back payments, they can be added to the loan, deferred, and/or sometimes even waived in part or entirely.  If we can modify the terms of your loan – which is normally the first step we take for you – the potentially high expenses and risks of foreclosure never materialize, and thus, the foreclosure is discontinued.

We urge that our clients must defend the foreclosure and not ignore it.  This gives you the time to recover from your hardship and determine your most favorable ultimate result.  Misiano Law simultaneously protects your interests in court and negotiates with your lender, keeping all options open to you. This is even if your situation changes and you then look for a different result than what was originally thought best.

Every homeowner’s situation is different.  When a client comes in for a consultation, we advise them on the best and most advantageous options available and map out a strategy best suited to their specific circumstances.

Help is available!  Call James F. Misiano today and come in for a consultation so we can explore the best options for you!

Car Stops: Police Search and Seizure

Do you know what your rights are in traffic stop encounters with the police?

“As a Constitutional Law professor at NYIT, whenever I taught the topic of 4th amendment rights regarding the State’s power in search and seizure, the college students particularly perked up in their awareness and paid close attention to that lecture,” said James Misiano of Misiano Law in Hauppauge, N.Y. “They all either were stopped, had friends who were stopped, or heard of traffic stops that evolved into a search of the car for contraband.”

The defining US Supreme Court case, Mapp vs the State of Ohio, and a vast variety of cases that followed, define what police can and can’t do. There are many nuances and gray areas, and like most interpretations in the law, it is not black and white. However, an understanding of the law in this area can be helpful to the motorist.

When one is stopped by a police officer at a traffic stop, the officer does not have blanket authority to search the inside of your car, particularly the glove compartment, trunk and inside your console. An officer may ask you to open the glove compartment or trunk, etc. (it may sound like a demand), but you may legitimately refuse to do so. In that event, the officer must get a warrant to search the car by setting forth “probable” or “reasonable” cause to believe contraband exists to a judge.

If you simply disobeyed a traffic control device or were speeding, such violations of the vehicle and traffic law do not constitute probable cause that there are illegal drugs in your glove compartment, and no search may ensue.   A gun or drugs that are in plain view of the police officer may be seized – but simply stated – the officer does not have carte blanche to turn your car upside down.  If the officer does, voice your objections and record the exchange on your cell phone.

“I have been called by clients at a stop and I recommended filming the incident contemporaneously,” said Misiano. “In all of the incidences, the police officer stopped the illegal search.”

“Recently in Nassau County District Court, I had a client accused of possessing various illegal controlled substances (drugs). He was ostensibly stopped – according to the two undercover police officers – for making a left turn without a signal. At the stop, they claimed they saw drugs in plain view in the back seat and they went on to do a full search of my client’s vehicle. I moved (by written motion) for a probable cause or “MAPP” hearing before the judge. The police officers testified under oath. Under cross-examination, it was learned that they never issued a traffic ticket to my client for the failure to signal his turn. It was clear that a black man entered my client’s vehicle, had a short conversation and left the car. It was obvious to me, and eventually the court, that this was the reason for the stop – an impermissible reason – racial profiling.”

“Both officers gave divergent accounts as to where the undercover car was in relation to my client’s vehicle, how they followed his vehicle and what my client did before the traffic stop. The court found that the “failure to signal” was a pre-text to stop the vehicle, and in fact, the stop was illegal. Since the stop was illegal, any evidence found thereafter was inadmissible in a court of law – known as the “fruit of the poisonous tree,” per Mapp case. The prosecution, now unable to present evidence of the crime, had to withdraw their prosecution of the case and my client went free. This is an illustration of police failure to obey search and seizure laws.”

Traffic stops routinely result in arrests beyond the original traffic infraction. Holding police accountable to constitutional standards is what lawyers do every day.

“If a traffic stop results in something more serious, call me,” said Misiano. “I know what to do.”